Continuities and Discontinuities in German Legal Thought

How does the history of your country and its legal traditions affect your identity as a citizen, researcher, teacher? In case you happen to be from Germany, how do you live with the memory of national crimes - and the fact that legal academia identified in significant numbers with the Nazi regime? Are there affinities in German legal traditions to anti-liberal ideologies and authoritarian mentalities? How did post-war Germany face its past? The essay does not try to address these questions systematically but through a narrative which seeks to trace the biographical impact of the German history.

     

德国民事诉讼法的历史嬗变

大陆法系国家的民事诉讼法或多或少都受到过德国民事诉讼法影响,统一的德国《民事诉讼法》制订于1877年,至今仍在适用;然而,德国民事诉讼法自身的形成经历了漫长的过程,在制定以后也进行了多次修改。按照时间的顺序梳理德国民事诉讼法的历史渊源和法律继受,可以从它发展演变和不断改革的过程中发现德国民事诉讼法具有旺盛生命力和蓬勃生机的原因,可对我国的民事诉讼法修订有所启发。     

A Lasting Impact? On the Legislative Activities of Immigrant-origin Parliamentarians in Germany

The article analyses the degree of substantive representation by immigrant-origin MPs in Germany's national and state parliaments. To test the expectation that an immigration background increases the likelihood of engaging with migration-related topics, an analysis is undertaken of all parliamentary questions (PQs) formally asked by immigrant-origin MPs in Germany's national and state parliaments between 1987 and 2009. By controlling for several time-invariant and time-variant factors, the longitudinal analysis confirms that a visible immigration background results in asking more migration-related PQs. While several contextual, party-political and personal (career) factors influence the likelihood of asking such questions in parliament, there is no evidence for a decrease over time. Presence effects are significant and of lasting nature. This means that the parliamentary presence of immigrant-origin MPs with a visible background goes beyond sheer symbolic representation.     

MPs and the Internet – An Empirically Based Typology

In recent years, both an increase in and a process of differentiation of ‘new’, digital media devices, including rising numbers of citizens turning to them, have stimulated recurring speculation about a readjustment of the communicative relationship between political representatives and the people. The debate about ‘electronic democracy’ has so far focused predominantly on technical potentials on the one hand and citizens' exposure to interactive political communication channels on the other. By contrast, the ‘supply side’, that is, the internet activities of political actors and especially their motives, has been investigated relatively rarely. Against this backdrop, two representative surveys were conducted among German and Austrian members of parliament that investigated their attitudes towards the internet. The results demonstrate similarities and differences in internet-related competences and assessments which are explained by micro- and meso-level factors. Foremost, an age-related ‘digital divide’ was found crossing the parliamentarian rows in both countries.     

Implicated: a review paper on guilt

Abstract

The review article examines three books about modern guilt. Each author comes from a different country: Schlink from Germany, Bruckner from France, and Chiarot from the United States. These works either point to or exemplify the problems implicit in concepts of universal guilt. The article explores ways in which each account reflects particular national preoccupations: the German reckoning with the Nazi past, the reassertion of France's global and historical role, and the American culture wars. The article concludes by recognising the importance of Schlink's impulse to deal with guilt scrupulously within the law, while sharing his doubts as to whether legal ways of dealing with guilt can be entirely adequate.     

论德国反恐斗争中的宪法保护问题

“9·11”恐怖袭击事件后,国际社会加大了对恐怖活动的打击力度,德国不遗余力地采取了一系列的措施与行动。在反恐斗争中德国强化宪法的价值与权威,在打击恐怖活动中恪守宪法基本原则,选择了有别于美国和英国的反恐模式,取得了较好的社会效果。研究德国反恐斗争中的宪法保护问题,可梳理德国反恐进路选择的原因与思路,对解决当下困扰各国的国家利益与公民权利之间及安全与自由之间的平衡问题有所裨益。     

德国合意制度对完善我国刑事和解制度的启示简

客观真实理念与刑事诉讼中的权力部分让渡具有天然契合性,德国刑事诉讼合意制度的流变反映了合意程序在德国刑事诉讼发展的必然。2009年5月修改通过的《德国刑事诉讼法》最引人瞩目的是该法第153条a款明文规定,允许程序参与者之间对刑事程序的结果及其处理达成合意,对我国新《刑事诉讼法》相关规定的补充和细化具有重要的启示意义。     

Understanding Havel?

The presented article tries to make sense of Václav Havel, a man of many qualities and professions yet not a professional in the conventional sense of the word. The aim is to offer deeper insight into diverse cognitive elements which formed Havel's political reasoning and attitudes. The idea is to provide an alternative interpretation and get beyond the customary explanations expressed through traditional IR language seeing Havel as a dissident idealist who was pushed by some realist impulses to clearly define real political and later also geopolitical stands. In doing so, the article is divided into three parts. The first part discusses conceptual frameworks (rather than a single framework) within which Have saw and understood the political world. The middle part examines Havel's political agenda, namely the issues of the return to Europe, the German question, and relationships with Russia, the United States and toward multilateral institutions. The final part that utilizes primary data obtained through personal interviews with many Havel's close collaborators presents two faces of Václav Havel: the dramatist and the ideologue.     

Explaining institutional Europeanisation in security and defence: the German administration under Schröder and Merkel

Abstract

Participating in EU crisis management operations has affected institutional actors on various levels. As the main deliverers of civilian and military resources to EU operations, national ministries and agencies have been particularly confronted with the need for administrative adaptation. A big member state like Germany is expected to make substantial contributions, but it also faces a rigid administration. This article uses a combined hypothesis of historical institutionalism and organisational learning to explain administrative Europeanisation in German government institutions involved in civilian and military crisis management deployments. The empirical data on the German administrative trajectories under Schröder and Merkel show an explanatory link between political learning and overcoming institutional path dependency.     

Mixed Rules,Different Roles? An Analysis of the Typical Pathways into the Bundestag and of MPs' Parliamentary Behaviour

Does the German mixed electoral system produce two types of representatives – MPs elected in the district who aim primarily to represent the interests of their constituencies and list MPs who are primarily loyal to their party or seek to serve ‘functional’ interest groups? The paper addresses this controversial question in two steps. It first uses sequence analysis in order to discover empirically just how prominent the exclusive ‘path into the Bundestag’ actually was by way of either the party list or the electoral district. The empirical basis is a data set covering all 3581 members of parliament from 1949 to 2009. Secondly, after having identified MPs with clear district or list careers, the paper replicates a study on committee membership asking whether district MPs sat more often in committees that are of relevance for their districts while list MPs more often sit in so-called ‘policy’ committees. The paper finds no evidence for a clear ‘mandate divide’ between MPs elected in a district and those numerous MPs entering parliament via the party list but also contesting a district.